Judges occasionally make harsh criticisms of the witnesses who
appear before them. Sometimes those criticisms are justified; other
times, everyone is just having a bad day. In these days of instant
search, such a criticism could be recycled endlessly in subsequent
cases, perhaps permanently damaging the credibility of the witness.
This could end the courtroom career of a professional, such as an
expert or police officer. But recycling old criticisms in this way
is illegal, at least in Ontario and Alberta.
Many courts have ruled that a witness cannot be cross examined
about what other judges have said about them. Previous judicial
comments about a witness are irrelevant to unrelated testimony in
The leading case is R. v. Ghorvei, where one judge had described a
particular police officer as "a compulsive liar".
Defendants in subsequent cases investigated by that same police
officer immediately argued that no subsequent judge (or jury)
should believe the officer either. The Ontario Court of Appeal
ruled that it was improper to cross examine the officer in
subsequent cases about the "liar" comments by the
 In my view, it is not proper to cross-examine a witness on
the fact that his or her testimony has been rejected or disbelieved
in a prior case. That fact, in and of itself, does not constitute
discreditable conduct. I do not think it would be useful to allow
cross-examination of a witness on what is, in essence, no more than
an opinion on the credibility of unrelated testimony given by this
witness in the context of another case.
Put simply, it would be a denial of justice for an accused
person or the prosecution's case to be judged on the basis
of findings of fact and of credibility in another proceeding.
The same rule applies to all types of witnesses, including
experts, per R. v.Karaibrahimovic:
7 ... Cross-examination of a witness about whether the
witness's testimony in previous proceedings was rejected or
disbelieved is irrelevant and ought not to be permitted....
8 Sound policy reasons exist for not using a present trial as an
opportunity to assess, or reassess, a witness's evidence in
another, unrelated trial. The most obvious problem is that what
happened in the first trial, including the reasoning of the trier
of fact in that trial, would not be known to the trier of fact in
11 ...The rationale for the collateral evidence rule, that is to
avoid mini-trials within trials on collateral issues, applies with
equal force to cross-examining experts about the treatment of their
testimony in prior cases.
Many other cases say the same thing.
The Ministry of the Environment knows this is the law, and they
should follow it.
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